Due to the damaging effects that the COVID-19 (coronavirus) pandemic is having on health and finances, the United States Congress continues to pass legislation to help provide relief to people. One of the larger bills recently signed into law is the Families First Coronavirus Response Act (FFCRA). The full FFCRA actually contains several bills or acts to help employees affected by COVID-19 care for themselves and family members without also suffering a full loss of income or employment.

Families First Coronavirus Response Act – Employees and Employers

The acts included in the FFCRA, along with attempting to help employees, also impact employers and their businesses, including the Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. These are expansions of the Family and Medical Leave Act (FMLA), amending certain requirements structured specifically in response to COVID-19.

Under the FFCRA, these take effect on April 1, 2020, and unless further legislation is enacted, they will end on December 31, 2020. The U.S. Department of Labor (DOL) has also issued a notice for the FFCRA, and covered employers must post it in a conspicuous place on its premises in accordance with federal law. Due to remote working, the DOL also provides guidance that covered employers may satisfy the requirement by emailing or mailing the notice to employees or posting the notice on an employee information website.

Health and financial impacts of the COVID-19 crisis may be far-reaching for some, and Widerman Malek wants to help employers and employees be aware of important requirements that may help you make more informed decisions. The following are key aspects of the acts; however, it is not the entire text of the FFCRA. If you think you will be affected, please review the full legislation or contact your Widerman Malek attorney if you have questions. (Links to the full legislation and DOL notice are available at the end of this post.)

Emergency Family Medical Leave Expansion Act

Congress amended the definitions requiring the Employee to have only been employed by their Employer for at least 30 days, rather than the standard 12 months of the FMLA.

It also redefined the Employer threshold to allow for under 500 Employees, rather than over 50. There are still exclusions for certain Employers with under 50 Employees, depending on the viability of the business if certain guidelines of this Act were followed.

Congress additionally defined the qualifying events to allow leave under this Act. An Employee must have a qualifying need related to a public health emergency wherein the Employee is unable to work, or telework, and must leave to care for a child under 18 should their school or child care be unavailable due to a public health emergency. Under this Act, Congress has defined a public health emergency as an emergency with respect to COVID-19 declared by a Federal, State or local authority.

The Act is regulated by the Secretary of Labor and can exclude certain health care workers and emergency responders from the definition of eligible employee.

Employees must give practicable notice of their request for paid leave. FMLA currently requires no less than 30 days’ notice for leave, however, in the face of a world-wide pandemic, 30 days would be most likely impossible.

The first 10 days of the Employee’s leave shall be unpaid by the Employer, however, the Employee may choose to substitute paid leave, such as vacation, sick or personal time, that had been accrued prior to their leave.

Employers shall provide paid leave to the Employee once the 10-day unpaid period is complete. The compensation shall not be less than two-thirds of the Employee’s regular rate of pay but shall not exceed $200.00 per day and $10,000.00 in the aggregate.

Employees shall be compensated pursuant to their normally scheduled hours of work. If an Employee has varying work hours, an average of hours for the preceding six months shall be used. If an Employee does not have a six-month work history, a reasonable expectation of hours shall be used by the Employer.

When the employee is ready to return to their position, but it no longer exists due to economic conditions or caused by a public health emergency during the leave period, the Employer must make reasonable efforts to place the Employee in an equivalent position with equivalent benefits, pay, and other employment conditions.

If those reasonable efforts fail, the Employer has a 1-year Contact Period to contact Employee if an equivalent position becomes available. The 1-year period begins on the earlier of 1) the conclusion date of the qualifying need; or 2) the date 12 weeks after the leave commences.

Emergency Paid Sick Leave Act

Employers must provide paid sick time when an Employee is unable to work or telework due to a need for leave because the Employee is:

Subject to Federal, State, or local quarantine or isolation order related to COVID-19.

Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Employee is caring for an individual who is subject to an order described in (1) or advised as described in (2).

Caring for child where school or day care has closed due to COVID-19 precautions.

Experiencing any substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The Act is regulated by the Secretary of Labor and can exclude certain health care workers and emergency responders from the definition of eligible employee.

Sick leave would be immediate and there is no requirement for length of employment.

Sick leave under this Act will be available no later than 15 days after the date of enactment.

A full time Employee shall receive up to eighty (80) hours of compensation. A part time Employee shall receive up to the average number of hours worked over a two (2) week period.

Employer may not require Employee to use other paid leave provided by Employer before using sick time under this Act.

The time under this Act shall not carry over from one year.

Paid sick leave under this Act ceases immediately with the next scheduled work shift following the termination of need.

Employee is not required to find their own replacement for Employer.

Employer shall not discharge, discipline, or in any other manner discriminate against the Employee who takes leave with this Act or who has filed any complaint or testifies in a proceeding related to this Act.

If you or someone you know is faced with employment questions or concerns during the COVID-19 crisis or any other time, please contact Widerman Malek for a consultation with one of our attorneys. We know these are challenging times for everybody, and our team is here to assist you. The full text of the Families First Coronavirus Response Act can be read here on the official Congress website. The notice issued by the DOL may be downloaded here.

On behalf of the undersigned individually and for the applicant business:

I/We authorize my/our insurance company, bank, financial institution, or other creditors to release to SBA all records and information necessary to process this application.

If my/our loan is approved, additional information may be required prior to loan closing. I/We will be advised in writing what information will be required to obtain my/our loan funds.

I/We hereby authorize the SBA to verify my/our past and present employment information and salary history as needed to process and service a disaster loan.

I/We authorize SBA, as required by the Privacy Act, to release any information collected in connection with this application to Federal, state, local, tribal or nonprofit organizations (e.g. Red Cross Salvation Army, Mennonite Disaster Services, SBA Resource Partners) for the purpose of assisting me with my/our SBA application, evaluating eligibility for additional assistance, or notifying me of the availability of such assistance.

I/We will not exclude from participating in or deny the benefits of, or otherwise subject to discrimination under any program or activity for which I/we receive Federal financial assistance from SBA, any person on grounds of age, color, handicap, marital status, national origin, race, religion, or sex.

I/We will report to the SBA Office of the Inspector General, Washington, DC 20416, any Federal employee who offers, in return for compensation of any kind, to help get this loan approved. I/We have not paid anyone connected with the Federal government for help in getting this loan.

CERTIFICATION AS TO TRUTHFUL INFORMATION: By signing this application, you certify that all information in your application and submitted with your application is true and correct to the best of your knowledge, and that you will submit truthful information in the future.

WARNING: Whoever wrongfully misapplies the proceeds of an SBA disaster loan shall be civilly liable to the Administrator in an amount equal to one-and-one half times the original principal amount of the loan under 15 U.S.C. 636(b). In addition, any false statement or misrepresentation to SBA may result in criminal, civil or administrative sanctions including, but not limited to: 1) fines and imprisonment, or both, under 15 U.S.C. 645, 18 U.S.C. 1001, 18 U.S.C. 1014, 18 U.S.C. 1040, 18 U.S.C. 3571, and any other applicable laws; 2) treble damages and civil penalties under the False Claims Act, 31 U.S.C. 3729; 3) double damages and civil penalties under the Program Fraud Civil Remedies Act, 31 U.S.C. 3802; and 4) suspension and/or debarment from all Federal procurement and non-procurement transactions. Statutory fines may increase if amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

No principal of the Applicant with a 50 percent or greater ownership interest is more than sixty (60) days delinquent on child support obligations.

Applicant is not an agricultural enterprise (e.g., farm), other than an aquaculture enterprise, agricultural cooperative, or nursery.

Applicant does not present live performances of a prurient sexual nature or derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature.

Applicant does not derive more than one-third of gross annual revenue from legal gambling activities.

Applicant is not a state, local, or municipal government entity and is not be a member of Congress.